Product Detail

Vol32 No 1 March-May 2018

PPSA models: a minimalist approach
By Diccon Loxton, Sheelagh McCracken and Andrew Boxall
 
The Final Report on the Statutory Review of the Personal Property Securities Act 2009 published in March 2015 (‘Whittaker Report’) identifies two models for analysing secured transactions under which ownership and possession of goods are divided between the secured party and the grantor, such as certain leases and bailments. It expresses a preference for what it calls the ‘unitary model’. This treats the grantor in possession of the goods as being not only the possessor of the goods but also the owner for the purposes of the legislation, and characterises the transaction as a ‘transfer’ of the goods to the grantor by the secured party. The Whittaker Report contrasts this with the ‘possession model’, under which there is no such treatment — the grantor’s interest remaining simply a possessory interest arising on delivery of the goods to it.
 
The Whittaker Report explains the preference as a matter of policy based on ‘the internal logic’ of the Australian legislation. Noting the unitary model’s consistency with decisions of courts in Canada and New Zealand, the Whittaker Report describes the model as assisting in ‘respect[ing] the Act’s objective of treating all security interests in the same way, regardless of who has title to the collateral.’ It concludes, however, that there should be further investigation of the models and an opportunity for stakeholders to provide arguments as to the choice of model.
 
This paper anticipates such an opportunity. It is the first in a series of three papers that address issues raised by the choice of models. The others are ‘PPSA Models: Easy as ABCD?’ which analyses major practical consequences arising under the models and ‘Chains of Leases: Aligning PPSA Models with Commercial Expectations’ which offers a specific technical case study drawing on the principles discussed in this paper in the important context of chains of leases. Each paper concludes that depiction of the grantor’s interest in terms of ownership is unwarranted and that the objective of the PPSA can be achieved through adopting a minimalist approach.
 
 
Contract law in the cases: 2017 in review
By Jeffrey Goldberger
 
The purpose of interpretation is sometimes mistakenly thought to be a search for the meaning of words. This in turn leads to the assumption that one must identify an ambiguity as a pre-condition to taking into account evidence of the setting of a legal text. Enormous energy and ingenuity is expended in finding ambiguities. This is the wrong starting point. Language can never be understood divorced from its context. In the words of Oliver Wendell Holmes, a word is not a transparent crystal. The true purpose is to find the contextual meaning of the language of the text, ie, what the words would convey to the reasonable person circumstanced as the parties were. In Codelfa Brennan J succinctly stated that ‘the symbols of language convey meaning according to the circumstances in which they are used’. (Lord Steyn: ‘The Intractable Problem of The Interpretation Of Legal Texts’ (2003) 25 Sydney Law Review 5)
 
‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’ (Oliver Wendell Holmes J in Towne v Eisner 38 S Ct 158 (1918) at 159)
  • PPSA models: a minimalist approach
    By Diccon Loxton, Sheelagh McCracken and Andrew Boxall
    page 3
  • PPSA models: a minimalist approach
    By Diccon Loxton, Sheelagh McCracken and Andrew Boxall
    page 3
  • Contract law in the cases: 2017 in review
    By Jeffrey Goldberger
    page 32
  • Member Price: $0.00
    Non Member Price: $30.00
     
    Main File Type pdf
    File Size 457KB
    Available File Types PDF
    © Copyright 2018 Commercial Law Association of Australia (CLA) |  Site by ICAN Solutions